Citation Nr: 0123034
Decision Date: 09/21/01 Archive Date: 09/24/01
DOCKET NO. 01-00 730 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether a deemed valid marriage existed between the claimant
and the veteran for the purposes of receiving Department of
Veterans Affairs (VA) death benefits.
REPRESENTATION
Claimant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from October 1945 to May
1946, from October 1947 to December 1949, and from August
1950 to December 1958. The veteran died in November 1998.
The claimant is the veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 administrative decision
of the St. Petersburg, Florida Regional Office (RO), which
determined that a deemed valid marriage between the claimant
and the veteran for VA purposes.
FINDINGS OF FACT
1. The veteran and the claimant began living together in
December 1992.
2. The record reflects that the claimant and the veteran
lived together and held themselves out to the community as
husband and wife for several years prior to his death.
3. The veteran and the claimant were ceremonially married on
November [redacted], 1998.
4. The veteran died on November [redacted], 1998.
5. The claimant's common-law marriage to the veteran is
invalid under Virginia and Florida law; however, the marriage
is deemed to be valid for purposes of entitlement to VA
benefits under applicable law and regulations.
CONCLUSION OF LAW
The requirements for a deemed valid marriage between the
claimant and the veteran for VA purposes have been met. 38
U.S.C.A. §§ 101, 103 (West 1991 & Supp. 2001); Veterans
Claims Assistance Act of 2000, as codified at 38 U.S.C.
§§ 5102-5107 (West Supp. 2001); 38 C.F.R. §§ 3.1, 3.50, 3.52,
3.205 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In reviewing the issue of whether the claimant may be
recognized as the veteran's surviving spouse for VA purposes,
the Board observes that the VA has secured or attempted to
secure all relevant documentation to the extent possible.
There remains no issue as to the substantial completeness of
the claimant's claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). The
claimant was advised by the statement of the case and the
supplemental statement of the case of the evidence that would
be necessary for her to substantiate her claim. Any duty
imposed by VCAA, including the duty to assist and to provide
notification, has been met.
The claimant contends that she should be recognized as the
veteran's surviving spouse as she lived with him continuously
from December 1992 until the date of his death, that they
held themselves out as husband and wife in their various
communities, and they were legally married. Thus, the
claimant is seeking entitlement to the benefits based on a
"deemed valid" marriage under 38 U.S.C.A. § 103(a) and 38
C.F.R. § 3.52. See Sandoval v. Brown, 7 Vet. App. 7 (1994)
and Colon v. Brown, 9 Vet. App. 104 (1996).
In support of her claim, the claimant submitted a copy of the
marriage certificate establishing that the claimant and the
veteran married on November [redacted], 1998, the veteran's death
certificate showing that he died on November [redacted], 1998, and
statements that the veteran and the claimant lived together
as husband and wife and that they had no children from their
union. The claimant asserts that, although she did not marry
the veteran until November 1998, she had lived with him since
1992 as his wife in both Virginia and Florida. Additionally,
in July 1999, VA questioned the claimant as to whether she
knew that Virginia and Florida did not recognize common-law
marriage and the reason for an officiated marriage
immediately prior to the veteran's death. In her July 1999
response, the claimant stated that she was not aware that
Florida or Virginia did not permit common-law marriages and
that they were officially married in order for her (the
claimant) to be buried next to the veteran in a National
Cemetery.
In further support of her claim, the claimant submitted
several statements from friends, neighbors, business
associates, and family members of the veteran and the
claimant to the effect that the veteran and the claimant
considered themselves to be husband and wife and held
themselves out to the public as husband and wife from 1992 to
the veteran's death in November 1998.
Generally, to be entitled to VA death benefits as a
"surviving spouse" of a veteran, a claimant must have been
the veteran's spouse at the time of the veteran's death and
have lived continuously with the veteran from the date of
their marriage to the date of the veteran's death. 38
U.S.C.A. § 101(3). "Marriage" means a marriage valid under
the law of the place where the parties resided at the time of
the marriage or the law of the place where the parties
resided when the rights to benefits accrued. 38 U.S.C.A. §
103(c); 38 C.F.R. § 3.1(j). "Surviving spouse" means a
person of the opposite sex who is a widow or widower provided
the marriage meets the requirements of 38 C.F.R. § 3.1(j).
38 C.F.R. § 3.50(c) (2000).
The validity of a marriage is determined based upon the law
of the jurisdiction where the parties resided at the time of
the marriage or when the rights to benefits accrued. 38
C.F.R. § 3.1(j); see Sanders v. Brown, 6 Vet. App. 17 (1993).
A valid marriage may be established by various types of
documentary evidence together with the claimant's certified
statement concerning the date, place and circumstances of
dissolution of any prior marriage, provided that such facts,
if they were to be corroborated by the evidence, would
warrant acceptance of the marriage as valid. 38 C.F.R. §
3.205(a). In jurisdictions where marriages other than by
ceremony are recognized, the marriage may be established by
the affidavits or certified statements of one or both of the
parties to the marriage, if living, setting forth all of the
facts and circumstances concerning the alleged marriage, such
as the agreement between the parties at the beginning of
their cohabitation, the period of cohabitation, places and
dates of residences, and whether children were born as a
result of the relationship. 38 C.F.R. § 3.205(a)(6). This
evidence should be supplemented by affidavits or certified
statements from two or more persons who know, as the result
of personal observation, the reputed relationship which
existed between the parties to the alleged marriage including
the periods of cohabitation, places of residences, whether
the parties held themselves out as husband and wife, and
whether they were generally accepted as such in the
communities in which they lived. Id.
Where a surviving spouse has submitted proof of a marriage in
accordance with the aforementioned and also meets the
requirements of 38 C.F.R. § 3.52, the claimant's signed
statement that he or she had no knowledge of an impediment to
the marriage will be accepted, in the absence of information
to the contrary, as proof of the marriage. 38 C.F.R. §
3.205(c).
Under 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52, where an
attempted marriage of a claimant to the veteran was invalid
by reason of a legal impediment, the marriage will
nevertheless be deemed valid if: (1) the marriage occurred 1
year or more before the veteran died (or existed for any
period of time if a child was born of the purported marriage
or was born to them before such marriage); (2) the claimant
entered into the marriage without knowledge of the
impediment; (3) the claimant cohabited with the veteran
continuously from the date of marriage to the date of his or
her death; and (4) no claim has been filed by a legal
surviving spouse who has been found entitled to gratuitous
death benefits other than accrued monthly benefits covering a
period prior to the veteran's death. All of the above
requirements must be met in order to find a deemed valid
marriage. See, e.g., Colon v. Brown, 9 Vet. App. at 107 (in
cases where the veteran was still legally married to another
person, if the claimant was unaware of the legal impediment,
then an otherwise invalid common law marriage may be deemed
valid). Moreover, the Board notes that in VAOPGCPREC 58-91
(1991), the VA General Counsel held that, for the purposes of
38 C.F.R. § 103(a), the requirement of a marriage ceremony by
a jurisdiction that does not recognized common-law marriage
constitutes a legal impediment to that marriage. See
VAOPGCPREC 58-91 (1991).
In the instant case, although the claimant continuously lived
with the veteran for more than 1 year prior to the date of
his death, the claimant and the veteran did not legally marry
until approximately 3 days prior to his death. Although
neither place of residence of the claimant and the veteran,
Virginia nor Florida, recognizes common-law marriage, the
claimant, in a signed statement in July 1999 as well as in
her appeal, reported that she was not aware that a ceremonial
marriage was required until just before the veteran's death.
Thus, the Board finds that the claimant has established that
she did not know that Virginia or Florida required a
ceremonial marriage for the marriage to be legal at the time
she began living with the veteran.
Upon review, the Board finds that the claimant's marriage in
common law to the veteran is valid under this regulation. A
clear preponderance of the evidence shows that they entered
into cohabitation in December 1992, held themselves out to
the public as man and wife for many years, and that they
continuously lived together as such for several years prior
to the veteran's death. Further, it is apparent from the
claimant's statements of record that she had no knowledge of
a legal impediment to a valid marriage to the veteran. Cf.
Colon, 9 Vet. App. 104 (1996); Sandoval,
7 Vet. App. 7 (1994). Her statements, combined with the
corroborating statements of close friends, neighbors, and
relatives, now persuade the Board that the claimant and the
veteran cohabited as husband and wife for a number of years
prior to his death, as required by 38 C.F.R. § 3.52(c).
For these reasons, the Board concludes that a "deemed valid"
marriage as required under the all provisions of 38 C.F.R.
§ 3.52 has been established by the evidence of record and
therefore, the claimant has established status as a surviving
spouse for VA purposes, for the benefits sought on appeal.
ORDER
As a deemed valid marriage between the veteran and the claim
has been established, the appeal is granted.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals